Neutral Citation Number: [2006] EWCA Crim 1080
Case No: 200504243/A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM 
His Honour Judge Hopkins QC
Cardiff Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12 May 2006
Before :

LORD JUSTICE PILL
MRS JUSTICE DOBBS DBE
and
MR JUSTICE UNDERHILL
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Between :

	REGINA		
	- and -		
	(1) NOEL LEONARD JAMES
(2) LOUISE REYNOLDS
(3) ANTHONY DANIEL ROBERTS		

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Mr J M Davies (instructed by Colin Jones & Co ) for James
Ms C Pickthall (instructed by Colin Jones & Co) for Reynolds
Mr J D Jenkins (instructed by Spiro Grech McSorley & Wilkins Solicitors) for Roberts

Hearing dates : 3rd May 2006 
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Judgment
Mrs Justice Dobbs :
1.	On 27th June 2005, at the Crown Court at Cardiff, James, Reynolds and Anthony Roberts pleaded guilty on re-arraignment.  On 26th July 2005, they were sentenced (H.H.Judge Hopkins QC) as follows:
i)	James:
a)	Conspiracy to supply a Class A drug (Heroin) - 4½ years imprisonment consecutive to a sentence of 3 years imprisonment being served. 
ii)	Reynolds:
a)	Conspiracy to supply a Class A drug (Heroin) - 3 years imprisonment.
b)	Breach of a Community Rehabilitation Order (original offence possessing a controlled drug) - No separate penalty. 
				TOTAL SENTENCE: 3 years imprisonment.  
iii)	Anthony Roberts:
a)	Conspiracy to supply a Class A drug (Heroin) - 3½ years imprisonment consecutive to a sentence of 5 years imprisonment being served.
PRESENT PROCEEDINGS
2.	James and Reynolds appeal against sentence by leave of the single judge.   Anthony Roberts’ application for an extension of time (5 months 3 weeks) in which to apply for leave to appeal against sentence has been referred to the Full Court by the single judge. 
3.	Jay Roberts (d.o.b. 11/02/84) pleaded guilty on re-arraignment to one count of conspiracy to supply a Class A drug (Heroin) and was sentenced to 2½ years imprisonment.
FACTS 
4.	Noel James and Anthony Roberts were both serving prisoners at HMP Parc in South Wales. James was serving a three year sentence for possessing heroin with intent to supply and Anthony Roberts was serving a 5 year sentence for firearms offences. 
5.	Louise Reynolds was the girlfriend of James. She was a heroin addict. Jay Roberts is the son of Anthony Roberts.   
6.	Over a period of about two weeks Anthony Roberts and James made a series of telephone calls from the prison to, respectively, Jay Roberts and Reynolds, and made arrangements for heroin to be brought into the prison. Because they knew the calls were monitored they used coded language.   
7.	Jay Roberts was to obtain the heroin and pass it to Reynolds to bring into the prison when she visited James.  On 21st October 2004 Jay Roberts gave a small amount of heroin to Reynolds, who successfully smuggled it into the prison and passed to James. 
8.	A further delivery was planned for 26th October 2004. On that day a further precaution, touched upon in the coded telephone conversations, was taken. Jay Roberts asked Reynolds to repack the drugs to avoid any risk of his fingerprints or DNA being found on them, in the event of the drugs being intercepted before delivery. 
9.	Reynolds was arrested as she left her flat with two small wraps of heroin in her mouth. She swallowed the drugs as she was arrested. She was taken to hospital, where she later passed the two wraps. They were found to contain a total of 1.58 grams of heroin. The purity was never established
10.	Jay Roberts was found waiting in a car nearby, ready to take Reynolds to the prison. He was arrested. Jay Roberts’ mobile telephone was not taken from him, and he was able to inform his father, via his sister, of the arrests. 
11.	When interviewed the appellants either denied the offences or made no comment. Reynolds later pleaded guilty on the basis that she was put under pressure to involve herself in the conspiracy by James, and indirectly through him, by Anthony Roberts. 
ANTECEDENTS
12.	James was born on 14th January 1973.   He has 28 convictions for 33 offences. They include four offences of possessing controlled drugs, one of cultivating cannabis and one of possessing heroin with intent to supply. 
13.	Reynolds was born on 19th October 1975.  She has 8 previous convictions for 5 offences. The majority are for shoplifting. There is one drugs offence. 
14.	Anthony Roberts was born on 1st June 1959.   He has 13 convictions for 30 offences. They include one offence of conspiracy to import cocaine (31/1/92 - 9 years imprisonment, varied on appeal to 7 years imprisonment). 
REPORTS
James: 
15.	A pre-sentence report dated 20th July 2005 referred to the appellant’s regret at his involvement, particularly as he had placed his partner in a very serious position. 
16.	He had a significant antecedent history which indicated a high risk of re-offending. The majority of his offending was directly related to drugs use. Abstinence would reduce the risk. It was of considerable concern that he had remained involved in the drugs culture, even whilst in prison.  There was a risk associated with supplying drugs to users.  
17.	He took responsibility for the offence, although he stated that he was physically threatened.   A letter from the appellant referred to bullying he suffered which led to the offence. He expressed his regret at being involved and involving his partner. 
Reynolds: 
18.	A pre-sentence report dated 21st July 2005 noted that at the time of the offence the appellant was subject to a Community Rehabilitation Order at the time of the offence, and attending a substance abuse programme as a condition of the order.
19.	Whilst on remand the appellant had referred herself to a CARAT drug support team. A support package for her release will include two drug agencies. She expressed a wish to engage in education.
20.	The risk of re-offending depended on her ability to remain drug free on release. Support would be in place and she appeared to be highly motivated to change. There was no evidence of a risk of direct harm to the public.
21.	She was coping well with custody, but there was a rehabilitative argument in favour of a reduction in sentence. Motivation would be more easily sustained over a shorter, rather than a longer, period prior to release. 
Anthony Roberts: 
22.	A pre-sentence report dated 27th June 2005 indicated that, despite pleading guilty, the applicant denied the offence. This indicated that he was unlikely to be motivated to address his offending behaviour.  There was a medium risk of re-offending, with the potential for a high risk of harm to the public.
SENTENCE
23.	The judge when sentencing noted that each of the appellants pleaded guilty on the day of trial, but before a jury had been sworn.
24.	The supply of drugs was always a serious offence which passed the custody threshold, particularly when it involved Class A drugs and was further aggravated by the fact that the intended place of supply was in a prison to a serving prisoner.
25.	Although the quantities of drug were small, that was inevitable in cases such as this. It was also inevitably found that those involved on the outside became involved because of emotional and/or blood relationship.
26.	Those who supplied prisoners with drugs would become prisoners themselves. Those who were already prisoners, who pressurised others to supply drugs to them, would have their sentences substantially increased.
27.	Reynolds and Jay Roberts were subjected to emotional pressure by James and Anthony Roberts. Reynolds was a heroin addict who used some of the heroin given to her by Jay Roberts for her own habit before supplying the balance to James.
28.	Jay Roberts took an essential and active part in the plan. He located the heroin and delivered it to Reynolds for onward supply to the prison.
29.	Anthony Roberts was directly involved in setting up and organising this conspiracy, pressurising his son, who was of previous good character, into becoming involved. It was his basis of plea that this was to facilitate the delivery of heroin to James, believing only James was going to use the drug. The logic or truth of that was difficult to accept.
30.	James, in a letter to the court, accepted responsibility for pressurising Reynolds into doing what she did. It was his case that the drugs were not for him, but for others in prison that had placed pressure upon him. Had his activities not been stopped by the police, working with the prison service, this conspiratorial arrangement would have continued.
31.	Account was taken of pleas, age and antecedents.  
GROUNDS OF APPEAL are as follows:
32.	James:
i)	The Judge failed to set out the basis for differentiating between the sentences imposed on the appellant and Anthony Roberts. 
ii)	Having not set out his reasons for the differentiation the Judge erred in imposing a term of 4½ years imprisonment, which was 12 months longer than that imposed on Anthony Roberts. 
iii)	The sentence was manifestly too long and therefore too severe. 
33.	Reynolds:
i)	There was disparity in the sentence of 3 years passed on the appellant and the sentences of 2½ years passed on Jay Roberts and 3½ years passed on Anthony Roberts. 
ii)	The Judge failed to reflect the greater and more significant involvement of Jay Roberts and failed to reflect the position of “director” of Anthony Roberts and his extensive history. 
34.	Anthony Roberts:
i)	Extension of time: In November 2005 the applicant discovered that the sentence of 5 years imposed in November 2002 had been added to the sentence of 3½ years. When the applicant was sentenced on 26th July 2005 that had not been the Judge’s intention. Time was taken clarifying the position with the Crown Court.  
ii)	Grounds:
a)	The Judge intended that the applicant should be a short term prisoner serving half the 3½ years imprisonment, but making the sentence consecutive to the sentence of 5 years being served made it a long term sentence, and he would serve two thirds. 
b)	In the alternative, if that was the intention of the Judge, then the sentence was disproportionate to the sentence imposed on the co-accused and no allowance was made to ensure the new total sentence was not excessive.  
35.	We agree with the single judge that none of the sentences imposed on the four defendants were manifestly excessive in themselves. The only arguable point in relation to James and Reynolds is one of disparity, a disparity which was not properly explained by the judge during sentence. Is the disparity so substantial that the relevant appellants have a justified sense of grievance? 
36.	Given that the disparity arguments predominantly turn on the question of the sentence imposed on Anthony Roberts, we deal with his application for an extension of time within which to appeal sentence first.
37.	At the time of sentencing Mr Roberts senior had some 63 days left to run on his original sentence of 5 years. The judge ordered the sentence of three and a half years to run consecutively to the five year sentence. Earlier in his sentencing remarks, before setting the term of imprisonment, the judge had indicated the proportion of the sentences that each defendant would serve. In the case of Mr Roberts, he would serve half of his new sentence, namely twenty one months. Any time spent in remand in custody in relation to the instant offence, if it had not already been taken into account would count as part of the sentence. In so doing, the judge was adopting the standard practice of the courts when explaining the effect of sentences of imprisonment. However, given that the judge was going to make the sentence to run consecutive to that already being served, he in fact wrongly explained the effect of the sentence. It is apparent that he had in mind that the applicant would serve the remaining 63 days followed by twenty one months, being half the sentence passed. Regrettably, none of the five counsel present drew his attention to the effect of the sentence. Mr Roberts only found out recently from the prison service what the effect of the sentence is and it was then that he contacted the solicitors with a view to seeking advice on the prospects of appeal. We think that the point is arguable and deserves closer scrutiny. In the circumstances, we grant an extension of time within which to seek leave to appeal and leave to appeal against sentence, in order for counsel to address us on the relevant provisions and for us to consider whether the sentence in the light of the submissions should have been ordered to run concurrently or if consecutive, should have been of shorter duration. 
38.	We now turn to the three appeals.
39.	Given that the judge did not explain the reasons for the disparity in sentence, we are in a position where we have to take an overall view on the evidence to assess whether and to what extent there should be differentiation between the appellants, having already said that the actual sentences passed in themselves were not manifestly excessive.
40.	In relation to James the following are the relevant aggravating features:
i)	That he was serving a sentence for possession with intent to supply of drugs – that in itself was a very serious aggravating factor; that he pressured his girlfriend into bringing the drugs into prison; that had the operation not been nipped in the bud, he would have continued; that the intended place of supply was a prison and the intended recipient a serving prisoner. The Crown had opened evidence of previous unsuccessful attempts to smuggle in heroin by James which they say pointed to the present conspiracy arising.
ii)	By way of mitigation it is said that he did not set up the conspiracy and had pressure placed on him by others to get involved.  He pleaded guilty, but this would attract little credit, being on the first day of trial.
41.	In relation to Danny Roberts:
i)	Similar points in aggravation as James. He was an organiser; he pressurised his son, a person of good character, into getting involved; he was serving a sentence for a serious, albeit different, offence; he had a previous conviction for smuggling drugs back in 1992, although this was not mentioned by the judge when sentencing. 
ii)	Apart from his plea for which little credit attached, there was no mitigation.
42.	With regards to Reynolds – the judge accepted that she was pressured into committing the offence; that she was a heroin addict but that she gained some advantage by using some of the heroin she was given by Jay Roberts to feed her own habit with the balance going to her partner in prison. She had one previous conviction for possession of a small amount of drugs and a number of offences of dishonesty, no doubt to fund her habit.
43.	Dealing with Roberts junior – he was a person of good character; the judge found that he was pressurised by his father into committing the offence, but having succumbed he played an essential and active part, by locating the heroin, giving it to Reynolds for onward supply and going to transport Reynolds to the prison with the drugs.
44.	Looking at the matter overall, in terms of hierarchy, we take the following approach:– that no distinction should be made between Roberts senior and James – James may have been under some pressure, but he played a full role even if he was not found to be the organiser. The fact that he was serving at the time for a similar offence also goes towards balancing out the difference between the two men. Having said that, although we do not act on it, there is some evidence giving grounds for suspicion that James was the person behind the conspiracy.  If that influenced the judge in seeking to impose a longer sentence on James than on Roberts senior, he should, with respect, have said so, giving reasons. 
45.	We can see no justification in the appellant James receiving 12 months more than his co-defendant Roberts unless the judge in the case of Roberts was taking into account the sentence already being served. If he was, then he should have said so. There is no way for us to know. It means therefore that we take the view that the sentence of four and half years imprisonment when compared to that of his co-defendant Roberts was such as to cause a substantial sense of grievance.
46.	Looking at the other two defendants – the distinction between Jay Roberts and Reynolds is essentially that of good character and six months would not be an inappropriate distinction. Having said that, Jay Roberts played a very important role in the conspiracy. Without him, the drugs would not have been obtained for onward transmission. The reason to differentiate between them is not clear therefore. 
47.	Turning to the case of Danny Roberts, the submission appears to be that the judge did not in fact intend to pass a consecutive sentence, given what he said about the length of time to be served. 
48.	We disagree. A consecutive sentence in principle was quite appropriate. 
49.	In the alternative, it is argued that the disproportionate sentence between Roberts and the other defendants made the sentence one which was manifestly harsh in the circumstances even given the fact that the judge found him to be the prime mover. The reason for this submission is that it is contended that the combination of Sections 33 and 51 of the Criminal Justice Act 1991 have the effect of treating the consecutive terms of imprisonment as a single term, with the result stated in paragraph 34(ii)(a) of this judgment.  This means that the earliest date on which Roberts is entitled to release will be significantly later than it would have been had the sentence been concurrent or a stand alone sentence. It is  submitted that it is clear from the sentencing remarks that the judge would not have imposed such a lengthy term had he been aware of the effect of the sentence he did pass. 
50.	The new early release provisions under the CJA 2003 came into force on 4th April 2005, but do not apply to prisoners serving a sentence of imprisonment imposed in respect of offences committed before 4th April 2005 which still fall to be governed by the CJA 1991, in particular sections 33 and 51.
51.	Section 33 deals with the duty to release short-term and long-term prisoners, creating the distinction between them as to when the duty to release arises.  Section 51(2) provides:
“For the purpose of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term if –
(a)	the sentences were passed on the same occasion; or
(b)	where they were passed on different occasions, the person has not been released under this Part [of the Act] at any time during the period beginning with the first and ending with the last of those occasions.”
52.	That provision applies to Roberts because he had not been released before the second sentence was imposed.  The aggregate of the sentence is considered to be a single term for the purposes of early release. In this case, the total would be eight and a half years. A Practice Statement was issued in 1992, following the coming into force of the Criminal Justice Act 1991. This indicated that courts had to have regard to the actual period likely to be served by the defendant when passing sentences of imprisonment under the provisions of the Act: Practice Statement (Crime Sentencing) [1992] 1 WLR 948. The case of Singh [1999] 1 Cr. App. R. (S) 445, a similar case to the present, highlights that need for vigilance and clarity.  As in the present case, the offence in Singh was committed while the appellant was still in custody following his earlier sentence.  
53.	The judge therefore had to consider three matters – the appropriate sentence for the offence, whether it should be concurrent or consecutive and the overall effect of any sentence passed as a result of Section 51. There was, as we pointed out, nothing wrong in principle with either the length or the consecutive term. The only issue is whether the judge took into account the effect of the legislation. He did not. Further he clearly thought that his sentence would achieve a release within about 21 months (plus the 63 days still to be served) of the sentence passed. Doing the best we can, and trying to achieve what the judge had in mind at the time, we propose to quash the  sentence of three and a half years imprisonment and substitute a sentence of 32 months imprisonment. 
54.	In relation to the other two appellant, we propose to quash the sentence of four and a half years imprisonment imposed on James and substitute a sentence of three and a half years imprisonment, the sentence originally passed on Danny Roberts. The appellant, on finding out that Roberts has still received a lesser sentence, no doubt will think it unfair, but we hope and expect that counsel will explain both the reasons and the effect of the sentence passed on Roberts so the apparent discrepancy makes sense. 
55.	In the case of Reynolds – we quash the sentence of three years imprisonment and substitute a sentence of two and a half years. Again, given the submissions made in relation to disparity, the appellant may think that the sentence is unfair in comparison to Danny Roberts. We express our expectation that counsel will fully explain the ramifications of the Roberts sentence.